United States v. Oliver

March 2, 2006

UNITED STATES OF AMERICA, PLAINTIFF,v.LANCE OLIVER, DEFENDANT.

The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on Defendant's Motion to Suppress Evidence (#13). Following this court's careful consideration of the arguments of the parties and the transcript of the evidentiary hearing held in this case, Defendant's Motion (#13) is DENIED.

BACKGROUND

On September 8, 2005, Defendant, Lance A. Oliver, was charged by indictment with: (1) knowingly and intentionally possessing at least 50 grams of a mixture and substance containing cocaine base ("crack"), a Schedule II controlled substance, with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A); (2) possession of a firearm after having been previously convicted of a crime punishable for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The Government has provided Notice (#12) that Defendant was previously convicted of two drug offenses which qualify Defendant for enhanced sentencing pursuant to 21 U.S.C. § 841(b)(1). Defendant is represented by retained counsel, David C. Thomas, and has been detained pending trial.

On October 19, 2005, Defendant filed a Motion to Suppress Evidence (#13). Defendant argued that he was arrested without warrant or probable cause. Defendant also argued that the Complaint for Search Warrant, which resulted in the issuance of a search warrant authorizing the search of apartment # 305, 204 N. Crestlane Drive, Kankakee, Illinois, failed to establish probable cause for the search of the apartment. On November 4, 2005, the Government filed a Response to Defendant's Motion to Suppress Evidence (#15). The Government argued that, based upon the facts of this case, Defendant's Motion to Suppress should be denied.

FACTS

An evidentiary hearing was held in this case on November 30, 2005. At the hearing, Zachary Johnston testified that he is a police officer with the Kankakee County Police Department. He is currently assigned as a special agent with the Kankakee Area Metropolitan Enforcement Group (KAMEG). Johnston testified that, on August 8, 2005, he applied for a search warrant for 204 North Crestlane, apartment #305, in Kankakee, Illinois. Johnston prepared the complaint for the search warrant, had it reviewed by an assistant state's attorney, and presented it to Judge Kathy Bradshaw-Elliott. Johnston testified that Judge Bradshaw-Elliott thoroughly reviewed the complaint and then signed the search warrant. The complaint for search warrant and the search warrant were admitted into evidence with no objection by Defendant.

Johnston testified that the search warrant was executed on August 11, 2005. At approximately 6:25 p.m., seven KAMEG agents were en route to the apartment in two vehicles. Johnston testified that, based upon their investigation, the KAMEG agents knew that Defendant resided at apartment #305 at 204 North Crestlane. Johnston testified that, as the agents neared the apartment building, he saw Defendant driving a maroon Expedition. Johnston notified Agent Kenneth Mallandine, who was in the vehicle behind his vehicle and was the agent in charge that day. Agent Mallandine advised him to try to relocate Defendant's vehicle and possibly make a traffic stop.

Johnston testified that, after traveling several blocks, he was able to locate Defendant's vehicle and observed Defendant park on the east side of the street facing southbound in a northbound lane in front of a residence. Johnston testified that Defendant's vehicle was about two feet off the curb, partially in the northbound traffic lane. Johnston stated that this was a traffic violation, so he conducted a traffic stop. Johnston stated that he was in radio communication with the other officers. He testified that, at the time he effected the traffic stop, the other officers were entering the apartment to execute the search warrant.

Johnston testified that, during the traffic stop, Officer Mallandine called him and advised him they had found crack cocaine in the apartment. At that time, Johnston asked Defendant to exit his vehicle and he was placed under arrest. Johnston testified that about three or four minutes had elapsed between the time he first got out of his car to approach Defendant's vehicle and the time he received word from Officer Mallandine and arrested Defendant. After Defendant was arrested, he was taken to the Kankakee Detention Center and searched. A plastic bag containing suspected crack cocaine was found in Defendant's right sock.

Kenneth Mallandine also testified at the hearing. Mallandine testified that he is a policeman with the Kankakee City Police Department and is assigned to KAMEG. Mallandine testified that he took part in the execution of the search warrant on August 11, 2005. Mallandine testified that, after the KAMEG agents arrived at the apartment complex, it took no longer than a minute for the officers to enter the apartment. Mallandine testified that, after entering the apartment, he saw crack cocaine in a plastic baggy sitting on top of a stereo speaker in the bedroom. Mallandine testified that the plastic baggy was located on the speaker with some mail and some other items with Defendant's name on them. Mallandine testified that he contacted Johnston on the radio and told him to go ahead and place Defendant in custody based upon the items found inside the apartment.

Following the hearing, Defendant asked that he be allowed to order a transcript of the proceedings and make his argument on the motion in writing. This court then allowed Defendant until January 30, 2006, to file written argument. This court allowed the Government until February 20, 2006, to respond. On January 26, 2006, Defendant filed his Memorandum in Support of Motion to Suppress Evidence (#25). In the Conclusion section of the Memorandum, Defendant stated that he requested until February 27, 2006, to file a Reply to the Government's Response. On February 14, 2006, the Government filed its Memorandum and Argument in Response to Defendant's Motion to Suppress Evidence (#26). Defendant has not filed a Reply. However, this court concludes that the issues in this case have been well argued and that the Motion is ready for ruling.

ANALYSIS

In his Memorandum, Defendant first argues that there was no probable cause to issue the search warrant. Defendant argues that the complaint for search warrant in this case was deficient because: (1) it did not specify a date on which the controlled purchase was made; (2) did not include any facts to establish that the confidential informant was reliable; and (3) did not inform the judge of the nature of the agreement between the confidential informant and the Kankakee Police Department. Defendant argued that this is a ...

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